Xiangyu Ma (LL.M. ’22) is a Contributor to Travaux. Prior to joining Berkeley Law, he obtained his LL.B. degree from Wuhan University in China. Previously, he had interned with public and private stakeholders across different legal sectors such as PE, bankruptcy, dispute resolution, and infrastructure construction. He is particularly interested in the topics of public law, international law, and comparative law.
The Hong Kong Court of Final Appeal, available here.
On March 30, 2022, Lord Reed, President of the United Kingdom Supreme Court, said that two British non-permanent judges of the Hong Kong Court of Final Appeal (CFA), the highest court in Hong Kong, would resign from their posts on the grounds that the Hong Kong administration had "departed from the values of political freedom, and freedom of expression.” Since the promulgation of the Hong Kong National Security Law, four foreign judges have left Hong Kong’s highest court. Chief Justice Andrew Cheung Kui-Nung regretted the resignations of two non-permanent foreign judges and stated that the judiciary’s commitment to upholding the rule of law and judicial independence is wholly unaffected. In the meantime, nine out of 10 remaining non-permanent foreign judges of the CFA confirmed they would stay. Beverley McLachlin, former Chief Justice of the Supreme Court of Canada, explained her reason for staying on: “the court is…perhaps the last surviving, strong institution of democracy.”
Hong Kong has a long tradition of recruiting foreign judges since its 1997 handover. Article 92 of the Hong Kong Basic Law stipulates that “[j]udges…may be recruited from other jurisdictions.” Article 82 also reads that inviting judges from “other common law jurisdictions to sit on the Court of Final Appeal” is permissible.
However, the employment of foreign judges in domestic courts, or even the mere citation of foreign law or international treaties in judgments, appears controversial – in the United States, Supreme Court Justice Antonin Scalia, in Roper v. Simmons, held in his dissenting opinion that he “do[es] not believe that approval by ‘other nations and peoples’ should buttress our commitment to American principles” and “the only legitimate function of this Court is to identify a moral consensus of the American people.”
Despite the skepticism, having foreign faces sitting on the bench is a global phenomenon that we can see in Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu, and many other jurisdictions. This article will examine the pros and cons of this phenomenon and explain why foreign judges are leaving Hong Kong.
Legitimizing and De-Legitimizing Foreign Judges in Domestic Courts
Most countries in the world expressly require judges to be citizens. However, more than 30 countries have foreign judges serving on their highest or constitutional courts. The reason for rejecting foreign judges is simple—different countries have their own laws, and foreign judges often lack the local legal knowledge to serve in a different state. Further, the court, as a branch of the government, needs to maintain a certain level of political sensitivity to avoid undermining its own legitimacy, especially in adjudicating interbranch disputes – for example, the US Supreme Court developed the Political Question Doctrine in Baker v. Carr to set the boundaries of its own adjudication. However, the role of the judiciary in the political sphere varies from country to country. In Germany, because of a history of Nazis gaining power through democratic procedures, the German Federal Constitutional Court is vested with broader power of judicial review than the US Supreme Court to draw constitutional boundaries on the operation of public powers. For example, it can declare a statute unconstitutional even without a case before the court. That said, foreign judges may not fully understand the local political context when delivering judgments on those highly political or interbranch cases. Additionally, foreign judges’ appearance in domestic courts may stir up strong nationalist sentiments. For instance, Republika Srpska, the Serb-majority substate of Bosnia and Herzegovina (BiH), claimed in 2020 that it would suspend its participation in BiH state institutions until foreign judges are expelled from BiH’s Constitutional Court. This followed a decision by the Court determining that Republika Srpska’s public land law was unconstitutional.
Nonetheless, there are also many justifications for having foreign judges in domestic courts. First, judges from jurisdictions with a high degree of the rule of law can boost the international prestige of newly established courts, thereby attracting much-needed foreign investment into the country. Hong Kong fits such a scenario: in 1983, Hong Kong experienced a stock disaster when China and the UK reached a deadlock in negotiating the transfer of sovereignty over the island. One of the reasons for the market panic was that the Judicial Committee of the Privy Council’s status as the highest appellate court in Hong Kong would be replaced by the Chinese judiciary or legislature after the Handover. Therefore, the Chinese government made concessions and agreed to vest the power of final judgment in Hong Kong’s courts and invite judges from other common law jurisdictions to participate in the court hearings. These legal commitments by the Chinese government then became parts of the Sino-British Joint Declaration and were finally written into the Hong Kong Basic Law.
Second, in some post-conflict countries, foreign judges are often seen as impartial outsiders who maintain distance from local political groups. As a result, they can empower courts in post-conflict nation-building processes by adjudicating cases as a neutral, apolitical third party. In BiH, a country with serious ethnonational divisions in the past, domestic judges are often suspected of being significantly influenced by their ethnonational affiliations in judicial decision-making. Foreign judges face less appearance of bias.
Third, some post-colonial and post-authoritarian countries lack qualified local professionals in the judiciary either because of their colonizers’ negligence of judicial localization or authoritarian regimes’ natural tendency to undermine the importance of the legal profession. For example, Hong Kong did not start its own legal education until the establishment of the Faculty of Law of the University of Hong Kong in 1969. Most of the legal professionals before the Handover were trained overseas, which could not be afforded by many local people. This is also the case in many small Caribbean and Pacific states. As a result, foreign judges are needed in these countries during their transitional periods.
Hong Kong’s Foreign Judges in Changing Times
Foreign judges have played an important role in the continued prosperity of Hong Kong after 1997. Since the Handover, Hong Kong has maintained a high-level rule of law jurisdiction worldwide, and Hong Kong judgments are cited from time to time overseas. However, the role of foreign judges in Hong Kong has become increasingly controversial as several factors have changed over the years.
First, Hong Kong is not as economically important to mainland China as it was at the time of the Handover. In 1997, China was experiencing rapid economic growth after the implementation of its “Reform and Opening-up” policies and sought membership in the World Trade Organization. Hong Kong, an international financial center, was crucial to China’s market reforms. This is the key reason for China’s “one country, two systems” policy, of which expatriate judges are a part. As China became the world’s second-largest economy, its support for this economically rational arrangement waned. Additionally, the economic integration of mainland China and Hong Kong incentivizes Beijing to gradually assimilate the legal system of Hong Kong, especially with other regions of the Great Bay Area, a mega-region that comprises the cities of Guangdong province, Hong Kong, and Macau.
Second, and more importantly, the legitimacy of the Hong Kong judiciary has declined in Beijing’s eyes in recent years. In democracies, the judiciary has always faced a democratic legitimacy dilemma because of counter-majoritarian difficulty. However, in Hong Kong, public trust towards the impartiality of the judiciary is often higher than public support of the Chief Executive and the Legislative Councillors. The real legitimacy problem the Hong Kong judiciary has to deal with is its legitimacy in the perception of the Chinese government, given the latter has “predominant political power” over Hong Kong. Some high-profile Chinese scholars have increasingly described the phenomenon of foreign judges in Hong Kong as the “loss of Chinese judicial sovereignty” and argue that the Hong Kong judiciary must be decolonized. Additionally, during the 2014 Umbrella Movement and the 2019 Anti-Extradition Bill Protests, some foreign judges sitting in Hong Kong’s lower courts were tagged by Chinese state media as people “who released the protestors caught by the police.” Therefore, in 2021, Beijing started to reiterate that the principle of “Patriots Governing Hong Kong” is fundamental to “One Country, Two Systems” and applies to judges at all levels. This will make the situation of foreign judges in Hong Kong even more delicate as their home countries are not China.
Third, the enactment of the Hong Kong National Security Law also places foreign judges in an ethical dilemma. Macau, the other “Special Administrative Region” of China, amended its Law of Judicial Organization in February 2019. Pursuant to Article 19-A of this law, judges hearing cases involving national security crimes must be selected from a pool of candidates who are Chinese citizens. On the contrary, the Hong Kong National Security Law does not impose nationality restrictions on judges who hear such cases. As a result, foreign judges in Hong Kong may be selected to sit on national security cases and subsequently face ethical dilemmas because adjudicating these cases may be perceived as legitimizing the diminishing of freedoms in this city.
The imposition of the Hong Kong National Security Law has already caused a brain drain in Hong Kong, and the newest COVID outbreak has exacerbated the situation—as of March 18, more than one million people out of the city’s seven million citizens have tested positive. Strict quarantine measures have led nearly 50% of European companies planning to relocate staff. Hong Kong’s status as Asia’s financial center may be experiencing its most precarious moment since the Handover. Hong Kong’s past success was built on the rule of law, in which foreign judges played an irreplaceable role. If Hong Kong wants to continue to prosper as a vibrant city, more efforts should be made to ensure foreign judges stay on their posts during these challenging times, rather than letting nationalists cheer their departure.